How to Help the Democrats Love Federalism

Democrats are really lost now. Trump not only won the White House, but has brought in a no-nonsense group of generals, business leaders, and iron-willed politicians to back up his administration. Trump has also shown clearly that he grasps how to completely outflank the left's Maginot Line of the old establishment media. Republicans will control Congress for some time.

Trump is going to appoint a conservative to replace the late Justice Scalia, and he will almost certainly get to put more conservative justices on the Supreme Court to replace three ancient justices: Ginsburg (83), Kennedy (80), and Breyer (78). The leftist core of the Supreme Court could be reduced to just Kagan and Sotamayor – with six solid young conservatives, which would leave court in good hands for a generation.

In desperation, Democrats have rediscovered the virtues of federalism, a system of government in which substantial power is left with sovereign states, and the federal government has limited authority to command Americans and their state governments. This is an opportunity that may not come again, which Republicans ought to seize with both hands.

True federalism is the cure to every problem of our nation, because the marketplace of governments rewards the best combinations of liberty and efficiency in the regulation of human affairs. Also, vitally, federalism gives each state a vested interest in protecting the rights of other states, much in the same way as the First Amendment gives all citizens a right in protecting the freedom of speech of others. Republicans in Washington have in their power two related major reforms that would devolve much power back to states, and these reforms require nothing more than a change in federal law.

First, shift from federal bureaucracies to state officials the duty and the right to enforce federal laws. This would allow the practical abolition of many federal agencies and departments. Keep federal employees only to enforce laws connected to those few enumerated powers in Article I like running the postal service or providing for national defense.

Second, strip all federal courts of subject matter jurisdiction regarding all federal questions and place original jurisdiction over federal questions where it was for the first century of our republic: solely with state courts. The Supreme Court would retain appellate jurisdiction on cases involving federal questions coming out of state courts, but the other federal courts would deal only with diversity of citizenship cases, as the Founding Fathers envisioned.

Congress could even refrain from forcing these devolutions of power to states by allowing individual state legislatures to opt out. As an incentive not to opt out, Congress could bestow on each state that assumes the administrative and judicial duties a federal grant equal to what Washington had been paying for those activities in the state.

This amount could gradually decrease over a period of years, so after ten years, the federal government would be sending to states each year only 25% of what had been the original award, but that would have allowed states a decade to find better and cheaper ways of administering and adjudicating federal laws.

The real change would be the savings of federal administrative costs, although this would be a real and not imaginary savings. The real change would be the transfer of that practical power that comes from controlling day-to-day administration from Washington to the state capitol.

The president, of course, would still retain the power to see that the laws be faithfully enforced, but today, he has little practical authority, because the president cannot hire or fire the vast majority of federal employees. He would retain the power he has today: the president could hire and fire the highest-level officers, and he could issue instructive orders about how laws are to be enforced.

What about removing federal district and circuit courts from handling federal question? State court systems could dramatically streamline the adjudication of federal questions so that these cases, which sometimes take decades and leave so much hanging in the air during the years of litigation, could be completely resolved in a year or less.

Democrats in Washington might howl at this redistribution of federal power, but what would Democrats in state governments do? Almost certainly every single state, including those run completely by Democrats, would opt in for both the money and the power. Once that happened, the change in the structure of government would be permanent and revolutionary.

Democrats are really lost now. Trump not only won the White House, but has brought in a no-nonsense group of generals, business leaders, and iron-willed politicians to back up his administration. Trump has also shown clearly that he grasps how to completely outflank the left's Maginot Line of the old establishment media. Republicans will control Congress for some time.

Trump is going to appoint a conservative to replace the late Justice Scalia, and he will almost certainly get to put more conservative justices on the Supreme Court to replace three ancient justices: Ginsburg (83), Kennedy (80), and Breyer (78). The leftist core of the Supreme Court could be reduced to just Kagan and Sotamayor – with six solid young conservatives, which would leave court in good hands for a generation.

In desperation, Democrats have rediscovered the virtues of federalism, a system of government in which substantial power is left with sovereign states, and the federal government has limited authority to command Americans and their state governments. This is an opportunity that may not come again, which Republicans ought to seize with both hands.

True federalism is the cure to every problem of our nation, because the marketplace of governments rewards the best combinations of liberty and efficiency in the regulation of human affairs. Also, vitally, federalism gives each state a vested interest in protecting the rights of other states, much in the same way as the First Amendment gives all citizens a right in protecting the freedom of speech of others. Republicans in Washington have in their power two related major reforms that would devolve much power back to states, and these reforms require nothing more than a change in federal law.

First, shift from federal bureaucracies to state officials the duty and the right to enforce federal laws. This would allow the practical abolition of many federal agencies and departments. Keep federal employees only to enforce laws connected to those few enumerated powers in Article I like running the postal service or providing for national defense.

Second, strip all federal courts of subject matter jurisdiction regarding all federal questions and place original jurisdiction over federal questions where it was for the first century of our republic: solely with state courts. The Supreme Court would retain appellate jurisdiction on cases involving federal questions coming out of state courts, but the other federal courts would deal only with diversity of citizenship cases, as the Founding Fathers envisioned.

Congress could even refrain from forcing these devolutions of power to states by allowing individual state legislatures to opt out. As an incentive not to opt out, Congress could bestow on each state that assumes the administrative and judicial duties a federal grant equal to what Washington had been paying for those activities in the state.

This amount could gradually decrease over a period of years, so after ten years, the federal government would be sending to states each year only 25% of what had been the original award, but that would have allowed states a decade to find better and cheaper ways of administering and adjudicating federal laws.

The real change would be the savings of federal administrative costs, although this would be a real and not imaginary savings. The real change would be the transfer of that practical power that comes from controlling day-to-day administration from Washington to the state capitol.

The president, of course, would still retain the power to see that the laws be faithfully enforced, but today, he has little practical authority, because the president cannot hire or fire the vast majority of federal employees. He would retain the power he has today: the president could hire and fire the highest-level officers, and he could issue instructive orders about how laws are to be enforced.

What about removing federal district and circuit courts from handling federal question? State court systems could dramatically streamline the adjudication of federal questions so that these cases, which sometimes take decades and leave so much hanging in the air during the years of litigation, could be completely resolved in a year or less.

Democrats in Washington might howl at this redistribution of federal power, but what would Democrats in state governments do? Almost certainly every single state, including those run completely by Democrats, would opt in for both the money and the power. Once that happened, the change in the structure of government would be permanent and revolutionary.